Drone Memo Exposes 'Dangerous' US Claim to Boundless War Powers

This mural is part of the 12 Hours Campaign in Sana'a, Yemen. Artists include Hadeel Almoafak, Hanan Alsurmi, Thi yazen Alalawi, and Murad Subay (Photograph courtesy of Murad Subay)

The U.S. government claimed broad war powers far beyond battlefields to justify its 2011 extrajudicial killing of U.S. citizen Anwar al-Aulaqi in Yemen, the recently-released "drone memo" reveals, in what critics warn sets a dangerous precedent for U.S. and foreign citizens alike.

The 41-page memo was penned in 2010 by David Barron, then head of the Justice Department’s Office of Legal Counsel, and is addressed to attorney general Eric Holder. It draws heavily on a broad and controversial congressional act—the 2001 Authorization for Use of Military Force—to justify the killing of Anwar al-Aulaqi a year before his death.

"[W]e believe the AUMF's authority to use lethal force abroad may also apply in appropriate circumstances to a United States citizen who is part of the forces of an enemy organization within the scope of the force authorization," reads the document.

The 2001 AUMF authorizes the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

This act has been interpreted by the Obama administration to authorize military force against "Taliban or al-Qaida forces, or associated forces"—an ill-defined grouping that includes a host of people and organizations, many of them unknown to the public.

"The administration's premise for the program of global armed conflict against not only al Qaida but unspecified 'associated forces' of al Qaida is the premise for a lot of the abuses we've seen over the last decade—from wrongful detention to rendition to torture to killing," said Center for Constitutional Rights senior attorney Pardiss Kebriaei, who was CCR’s lead counsel on two lawsuits with the ACLU challenging the killing of Al-Aulaqi. "The idea that the United States could use war time power and lethal force in situations that are not battlefields, that don't have battlefields, is extremely dangerous."

The memo charges that Anwar al-Aulaqi had become a leader of al Qaida in the Arabian Peninsula or an associated force and constituted an "imminent" threat to the U.S., and his capture was infeasible. Yet, information allegedly backing claims of imminent threat was redacted in the document, which was slashed by nearly a third.

Furthermore, the memo leaves questions about who else the U.S. government believes it has the right to kill without trial. "The memo does not address the outer bounds of claimed killing authority against U.S. citizens," said Kebriaei. "This is not saying that circumstances not meeting the threshold in the memo are unlawful. The memo seems to suggest that there are other circumstances that are beneath the threshold in this memo where killing could be lawful."

Meanwhile, virtually nothing is known about the justifications underpinning the U.S. drone killings of over 4,000 people since 2009, many of them children and civilians, and the vast majority of them foreign citizens.

“The drone program has been responsible for the deaths of thousands of people, including countless innocent bystanders, but the American public knows scandalously little about who is being killed and why," said ACLU deputy legal director Jameel Jaffer in a statement released Monday.

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